AO/380/2006 of NATIONAL INSURANCE CO. LTD. Vs SMT. ADRESON and ORS.

IN THE HIGH COURT OF UTTARAKHANDAT NAINITAL

Appeal From Order No. 380 of 2006

National Insurance Company Ltd. …Appellant

Versus

Smt. Adreson & others .. Respondents

Sri K. K. Shah, Advocate, for appellant-insurance company Sri D.C.S. Rawat, Advocate, for respondents no. 1 to 3

Dated: May 13, 2008

Hon’ble B.C. Kandpal, J.

This appeal under Section 30 of Workmen’s Compensation Act, 1923, has been preferred by the appellant-National Insurance Company Ltd. Agains the judgment and award dated 18.1.2006 passed by Workmen Compensation Commissioner & Assistant Labour Commissioner, Dehradun, in W.C.A. Case No. 25 of 2002, Smt. Adreson versus Shri Ali Mohammad and another.

Brief facts of the case as narrated by the claimant are that deceased-Akbar Ali was the driver of Truck No. UTX 7831, owned by respondent no. 4. On 14.8.2001 deceased-Akbar Ali was driving the said Truck from Premnagar to Harbartpur and was on duty, at about 4.15 p.m. another Truck No. U.P. 07B-1464 which was being driven rashly and negligently dashed against Truck No. UTX 7831, on account of which Akbar Ali sustained serious injuries and succumbed to those injuries. It has been stated that at the time of accident deceased-Akbar Ali was aged about 42-43 years and was receiving monthly salary of Rs.3000/- plus

Rs.100/- per day towards allowance. The claimant has pleaded that deceased-Akbar Ali died during the course of employment of opposite party no. 1 but opposite party no. 1 did not pay any compensation to the claimant. The opposite party no. 2-National Insurance Co. Ltd. is the insurer of Truck No. UTX 7831. The claimant thus claimed sum of Rs.3,50,000/- as compensation against the opposite parties.

The opposite party no. 1-Sri Ali Mohammad filed his written statement and alleged that deceased-Akbar Ali was employed as driver over Truck No. UTX 7831 on the date of accident but salary of deceased was Rs.3500/- per month. At the time of accident his vehicle i.e. Truck No. UTX 7831 was insured with National Insurance Company Ltd. which, insurance of which was valid from 15.11.2000 to 14.11.2001. The liability to pay the compensation fastens upon opposite party no. 2-insurance company as on the date of accident vehicle of opposite party no. 1 was insured with opposite party no. 2.

The opposite party no. 2-National Insurance Company Ltd. filed its written statement and took additional plea that it is not liable to pay interest and cost. The liability of answering respondent is only in accordance with conditions of insurance policy. It also took plea that at the time of accident deceased-Akbar Ali was not having valid and effective driving licence. Therefore, the insurance company is not liable to pay any compensation.

The learned Workmen Compensation Commissioner after having considered the entire material available on record and hearing learned counsel for the parties awarded compensation for sum of Rs.2,40,961/- to be payable by insurer of vehicle i.e. National Insurance Company Ltd. The Workmen Compensation Commissioner also directed the owner to pay sum of Rs.25,000/- as penalty.

Feeling aggrieved by the aforesaid impugned judgment and award, the appellant/insurance company has preferred the appeal before this Court, which has been placed before me for final disposal.

Heard Sri K.K. Shah, learned counsel for appellant-insurance company, Sri D.C.S. Rawat, learned counsel for respondents no. 1 to 3 and perused the record. None has appeared on behalf of respondent no. 4-owner of the vehicle.

Learned counsel for appellant has confined his argument to the aspect that the driver of offending vehicle was not having valid and effective driving licence on the date of accident, therefore, the insurance company cannot be held liable for payment of amount of compensation awarded against it. It has further been submitted that in case if any amount of compensation is awarded by the Workmen Compensation Commissioner, that is to be paid by the insured of the vehicle.

The record reveals that deceased-Akbar Ali was the driver of Truck No. UTX 7831 owned by respondent no. 4-Ali Mohammad and was insured

by National Insurance Company Ltd. The record further reveals that driving licence of deceased-Akbar Ali was valid and effective upto 15.5.2000. The accident in this case took place on 14.8.2001. Neither any application has been filed by the claimant in order to show that the deceased had applied for renewal of driving licence within period of one month from the date of its expiry nor there is anything available on record which may suggest that matter for renewal of driving licence was pending before the Licensing Authority on the date of accident. Therefore, the picture is very clear that the driver was not having any valid and effective driving licence on the date of accident. The Workmen Compensation Commissioner has taken the view that the driver of the Truck was not found disqualified from driving the vehicle during period i.e. 15.5.2000 to 14.8.2001, therefore, the Workmen Compensation Commissioner took the view that it is not case of invalid driving licence with the driver of Truck. The view taken by Workmen Compensation Commissioner appears to be wrong in the light of the observations made by the Hon’ble Apex Court in paragraphs-7 and 8 of the judgment reported in 2007 (2) T.A.C. 393 (S.C.), Ishwar Chandra & others vs. Oriental Insurance Co. Ltd. and others.

The Hon’ble Apex Court also taken note of the case, reported in 2004 (3) SCC 297, National Insurance Co. Ltd. vs. Swaran Singh and others, wherein it has been held that the liability of the Insurance Company vis-à-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in case where

the driver was not having licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle.

In view of the judgments passed by the Hon’ble Apex Court (supra), I am of the view that conclusion drawn by the Workmen Compensation Commissioner in fixing the liability upon the insurance company appears to be wrong. In case if the insurance company has to pay the amount of compensation awarded by the Workmen Compensation Commissioner, the insurance company should have been given recoverable rights from the insured of the vehicle.

For the reasons stated above, I am of the view that the impugned judgment and award passed by Workmen Compensation Commissioner is liable to be modified upto the extent that the amount of compensation awarded is to be paid by the insurance company with the recovery rights from the insured of the vehicle instead of making the payment of the amount of compensation by the insurance company only.

Accordingly, the appeal is partly allowed. The impugned judgment and award is modified upto the extent that the amount of compensation awarded is to be paid by the insurance company with the recovery rights from the insured of the vehicle instead of making the payment of the amount of compensation by the insurance company only.

(B.C. Kandpal, J.)